Episode 04: Fair Housing with Katherine O'Regan

Shane Phillips 0:05
This is UCLA Housing Voice podcast where we talk with housing researchers about their work minus all the jargon and we dig into how that research can be translated into more affordable, equitable, and accessible cities. I'm Shane Phillips and I run the housing initiative for the UCLA Lewis Center for Regional Policy Studies. And my co-host is Dr. Mike Lens, Associate Professor of Urban Planning and Public Policy at UCLA, and second in command at the Lewis center, but not after me to be clear. If you haven't already subscribed to the podcast, please be sure to find it on whatever platform you use and do just that. And if you like what you hear, tell others, rate review, tell a friend, you know the deal. Okay, let's get started.

Michael Lens 0:56
Hello, today we are joined by Dr. Katherine O'Regan, Professor of Public Policy and Planning at the NYU Wagner Graduate School of Public Service. Katherine also serves as Faculty Director of the Master of Science in Public Policy Program and Faculty Director of the Furman Center for Real Estate and Urban Policy. This is not the first time that the Furman Center has come up in this podcast, I am a proud alum. And Kathy also worked from 2014 to 2017 in the Obama administration, as Assistant Secretary for Policy Development and Research at the Department of Housing and Urban Development, which we all know is HUD. She has published many, many articles, on a lot of housing topics but today we're going to talk about a couple of her pieces about Fair Housing that she has recently published in the past few years. And we are so happy to have Kathy here to talk about these papers, and generally about the topic of Fair Housing and Affirmatively Furthering Fair Housing, which we will unpack certainly in a minute. So welcome, Kathy, thank you for joining us.

Katherine O'Regan 2:06
Thank you, Mike. Thank you so much for inviting me in, and you too, Shane, this is a topic near and dear to my heart. And it's really good to see you again, I know this is something you both care a great deal about.

Michael Lens 2:18
Ofcourse! And to start, Kathy, you know, as I mentioned, your research certainly covers a wide range of housing issues, before we get into Fair Housing specifically, can you tell us a little bit about your research interests, and maybe even how you came to really be passionate about housing?

Katherine O'Regan 2:40
Great, yes, thank you. Most of my work really does focus, at least now, on federal housing policies, particularly affordable housing and housing assistance. And I can talk about a couple of pieces of work that are related, but are not fair housing. But to sort of... I liked the fact that you went back to motivation. So my mother worked and ran a free housing clinic that was situated in a public housing project in Providence, Rhode Island. So it was in the projects delivering health care, and basically being that bridging capital that a community-based organization can bring, and, you know, bird's eye view of spatial disparities and the role of neighborhoods and blocking opportunity, and the role of institutions and policies in shaping and being both the positive and negative forces. And so you know, in retrospect, looking at all the things that have kind of driven, got me excited and sad in the work, spatial opportunity housing is a driver, and it's also an impediment. And so most of the work I do connects to that. So I'm doing some stuff that I wouldn't have thought of as fair housing until today's conversation, I'm doing some work with Ingrid Gould Ellen on Housing Choice Voucher. So here's a really important Housing Assistance Program, in which recipients who received the program don't get to use it unless a landlord is willing to rent to them. And so there's a lot of work now on trying to think about that aspect of the program. And we're looking at a variety of strategies and practices, and whether they seem effective on helping people use the voucher and particularly using it in high-opportunity neighborhoods. I'm also doing some work in Connecticut. We're just starting looking at the Low Income Housing Tax Credit. And there's been a lot of focus on that housing program and whether it gets people into good neighborhoods. And we're kind of asking a second-level question when the housing is in higher opportunity neighborhoods, who gets the housing? So is it true that when these are in higher opportunity neighborhoods, it's less likely that people of color are the lowest income applicants are the ones who get it in which case, we need to understand more what strategies improve not just with the housing but between the equity of access to the housing, and we actually know nothing about that, which kind of terrifies me. And then, you know, my other hat, the one you were talking about, like the Furman center, we're doing a lot of work as many places are around the country now and trying to be useful, during the pandemic, on getting data out about the households that are affected, the housing there and what this might be for landlords. And that seems to be the urgent research list most days.

Michael Lens 5:32
Right, right. So Kathy, we're talking about two papers, specifically today. One, you wrote for housing policy debate, titled 'The Fair Housing Act today: Current Context and Challenges at 50'. And another you co authored with Ken Zimmerman named the 'Potential of the Fair Housing Act Affirmative Mandate, and HUD's AFFH Rule'. So as a starting point, you know, maybe we can start with an overview of how the Fair Housing Act came about, and you know, what problems it was trying to solve. And its, you know, two overarching goals, you know, to introduce one being ending discrimination in the housing market, which of course, was, you know, widespread in 1968, certainly, and two, taking proactive steps, and this is the AFFH part, the Affirmatively Furthering Fair Housing part to reverse patterns of segregation that federal policy, and a lot of other mechanisms had helped establish. So, you know, can you kind of introduce us to that?

Katherine O'Regan 6:37
Yes, absolutely. And I think it's really good to start with the historical context. This Fair Housing legislation was kind of the third part of a legislative agenda on civil rights that Lyndon Johnson had. And it was after the passage of the Civil Rights Act in 1964, and then the Voting Act of 1965, that fair housing legislation was put forward, but it was moving nowhere. It had stalled in Congress, it was actually in the midst of a filibuster. And the backdrop in the country was that there was mounting urban unrest across the country, in the summer of 1967, there were over 100 urban riots. And in early 1968, the Kerner commission report was issued. Now, this was a 400 page report that was extremely detailed, and the mandate of that report was, tell us what happened, tell us why it happens, what the causes were, and then what we should do about it. And it was a very frank report, blunt actually, and it had two key findings that it elevated that were critical for the Fair Housing Act. So first, it linked that separation, so segregation in this society, directly to inequality in other non-housing outcomes, so jobs, income, wealth and safety. And stating, I'm going to do some quotes from the report, that "America is moving towards two societies, one black and one white, separate and unequal". And I think this emphasis, the major reason we're concerned about segregation is that it is a driver of inequality along a whole dimension of domains, that gets really important and good to keep in mind in current context, because that has not changed. The report also explicitly called out the role of white racism and white institutions, it's really powerful to read the language because it is blunter than we're willing to be today, right? A quote: "white society is deeply implicated in the "ghetto", white institutions created it, white institutions maintain it, and white society condones it". So that was... it was not suggesting, you know, we've got poverty, we've got blood ...we have done this to ourselves, and it is the driver of the racial inequality that we have. And it placed then the solution in saying we need comprehensive fair housing legislation and resources put to this problem that are at the size of the nature of the problem.

Shane Phillips 9:22
And I just, I feel like I just need to reiterate too, your point about how old that statement was. It's a statement that I'm not sure the Obama administration would have made.

Katherine O'Regan 9:34
The Obama Administration would not make it, would not make it and I rerun the preamble and pointed it when Ferguson happened, and then only three months secretary of HUD Julian Castro was dealing with and felt like we're back at the same place that we were then and rerouted this, you know, last summer as we were going through our own unrest, and the waking up of yet again seeing the structural aspect of racism in this country. So it's very powerful, very powerful. A month after that report came out, Martin Luther King, Jr. was assassinated. And that was when the Fair Housing Act was passed. So it was amongst really seeing the size of the problem and that recognition of the institutional part. So that's Mike how you mentioned there are two statutory goals. And they're very explicit, and they're very uneven in where we are as a country. And the first was to really tackle housing discrimination across all the actors and housing markets. We have not finished that work, but we have been working towards that work. And the second is, it places a special responsibility on federal agencies involved in housing and community development, that given the role they had, the direct explicit role in creating segregated communities, they need to do more than not discriminate. They need to affirmatively use their resources, including an obligation on those who they fund to affirmatively further fair housing, I will say affirmatively further, just to shorten that real mouthful. And I'm still trying to stay away from some of the acronyms on this. And I think it's worth calling out there's a long list of policies and I think the redlining appropriately gets noted for the critical role. It's played, both in creating segregation and the barrier to the creation of wealth. You basically had public programs that subsidized wealth building among white communities and then prohibited it in black communities. And till today, you can actually trace back the segregation lines to those practices, but the practices... there were many practices. And there were many federal actors who were implicated in this, not just HUD, but the second part of the Fair Housing Act has been really under-realized.

Michael Lens 12:10
Right, right.

Shane Phillips 12:11
So as you say, we've been much more successful at that first goal of reducing discrimination in the housing market, than, at this affirmatively furthering goal of reversing patterns of segregation, and to quote the actual rules and law "fostering inclusive communities", which is what AFFH calls for. I have a quote here from I think your 50 year retrospective paper, you say, "on the second goal, persistently high levels of segregation and associated disparities in quality of neighborhoods suggest quite limited progress". Before we even talk about like, why that is, can we talk about what that actually looks like? Is, calling it quite limited progress even being too kind? Have we made really any progress on this?

Katherine O'Regan 13:01
It depends on how you think about progress. If you think about the Fair Housing Act as focusing on actions to reduce segregation, I feel like we've made no progress. I think to the extent that we've seen changes in segregation, they've reflected... and so this is not based on research where I can document this, but I feel as though there have been lots of changes in demographics. And some in attitudes that may change segregation but I don't think that we've seen levers of change from direct action, in the hopes of decreasing segregation.

Shane Phillips 13:44
So if there is any, you know, improvement happening, it's kind of our good luck, maybe more than deliberate actions that we're taking.

Katherine O'Regan 13:53
So I think the decrease in discrimination in housing markets is real. And those are true actions, and that can open up communities. I think the black-white dichotomy and discrimination and racism from the 60s differs, because we're a multirace, multiethnic society, and that changes the next neighborhood boundaries more permeable because there's so many different sorts of people. So I think the nature of interaction and the composition of the population and changing culture and chimes and decreasing discrimination. So that first bullet, so I'm giving low marks, but some marks. On the policy side, I don't want to give credit to the policy arena for evolution of what our society looks like along that dimension.

Shane Phillips 14:49
Yes.

Michael Lens 14:49
Right. So I guess one way that I would think about that is if we look at 1970 as the best data point to look at as where we were when the 1968 Fair Housing Act was passed. You know, if you again go to the black-white dichotomy as Kathy framed it, we certainly have seen a decline in segregation across the country in most, if not all, metropolitan areas, blacks are less segregated from whites than they were in 1970. You know, I guess you could add a complication there that we are probably more segregated by income, you know, as a country, regardless of race, right? Poverty is more concentrated and affluence is more concentrated than it was in 1970. And then, you know, I guess what, what I'm hearing from Kathy is like, that's not necessarily the result of brilliant policymaking, that's probably the result of reduced discrimination on the part of individual home seekers, as much as anything, probably. And then, of course, the more complicated racial and ethnic patchwork that we have in this country that is now not just black, white in virtually any city, right, that we have a much larger population of people who are not black or white. And that, I think, greatly complicates, in my view, great ways the kind of, you know, segregated landscape that we have in this country.

Shane Phillips 16:27
Yeah.

Katherine O'Regan 16:27
And I think segregation, so the Hispanic white and Hispanic non-white segregation for the last couple of decades has not been improving. I think we've seen that drop off right, so...

Shane Phillips 16:36
Right. So the follow-up to this, and maybe this is sort of a historical question as well is, what do we ascribe this to? Why have we done so little on this second goal of Affirmatively Furthering Fair Housing and actually reversing, reducing, eliminating segregation?

Katherine O'Regan 16:56
So one thing that is a weakness of the Fair Housing Act on this obligation is, you know, Shane, you called out the definition in the rule of fostering inclusive communities, and that was certainly the goal of the Kerner Commission report in the hopes of fair housing. But if you look at the Fair Housing Act, this heightened obligation on doing something about patterns of segregation and Affirmatively Furthering, that heightened obligation is only on federal actors,. Right, in the use of their funds. And so I mean, partially, and I think we might get back we'll get talk about this discussion is thinking about, you know, if you think about the justification for putting that in the Act, it really was about previous behaviors, like, okay, you created this problem, you fix it, right, you used public funding to create this. But it's only on federal actors and those using their money when the money is about housing and community development. And then this obligation has mainly been interpreted as being about HUD money....

Shane Phillips 18:01
Right.

Katherine O'Regan 18:01
So it is narrow, was really taken this big issue and turned it into a narrow focus. What HUD has done about it, and I didn't know this until I worked on the rule, like the most aggressive HUD tactics on this were right after the Fair Housing Act was passed. So in 1969, then HUD Secretary George Romney took this up and he believed it. He thought this was a mandate for opening up and making communities inclusive. He created a program called 'Open Communities', he withheld funding from exclusionary suburbs, water sewer parkland, white suburbs, and he got trounced for this. So the places that were losing the money picked up their phones, the White House didn't even know he was doing this, Nixon Administration was totally against it. There was a bit of a war, which Romney lost, the program was dismantled, and he ultimately left the cabinet. And HUD hasn't done anything like that since, there have been a couple of other efforts. But you know, HUD is a reflection of our society, and I think we as a society really do believe that discrimination is wrong, and that we should remove it, and we have an affirmative obligation on that. Whether we affirmatively need to open up our neighborhoods, particularly our neighborhoods if they're white neighborhoods, I'm not so sure that there's much commitment, that there's that nearly as pervasive commitment and that we really... Zeb Briggs talks about this all the time, that we really need to own, that this is something that we have not fixed, and that we keep perpetuating. It hasn't happened to us. And I don't think there's been enough, and I can say having spent seven years... the Obama administration set seven years to get its rule out and it's the first final rule on Affirmatively Furthering Fair Housing, and it barely got out in that administration where everybody wanted it.

Shane Phillips 18:24
The first since 1968?

Katherine O'Regan 19:54
Yes, first final rule. And then in the 1990s, they put forward a proposed rule that had metrics, they got 1000s of comments, and it never got to final rule.

Michael Lens 20:18
Right. So I mean, I guess one fun thing in there, of course, is George Romney, father of Mitt being a great white hero. I never miss an opportunity to, you know, kind of surprise our students with that kind of historical fact. And then also, I mean, I think you framed it perfectly that this obligation that, you know, I think we believe in, if I say we, as in the three people in this podcast, is one that is not necessarily shared by a vast majority, or a kind of voting majority of this country. And we see this in so many other aspects of policymaking where we end up in a place that is okay with equality, but not not necessarily equity, right? Where we have these colorblind solutions to problems that probably require color attention if you will. But let's get some specificity maybe on the rule, right? So this is the first rule that HUD finally passes to get to the affirmative step, get somewhere on producing equity, rather than just saying that discrimination is bad and doing something about the discrimination piece, you know, how did we get to this rule, and what did it do?

Katherine O'Regan 21:59
Right, so I shouldn't... to my HUD colleagues, I shouldn't say HUD has done nothing. HUD took several actions in the 1980s, including creating the process that existed prior to the 2015 rule, which was called an 'Analysis of Impediments' was highly criticized by Fair Housing people and others, ultimately by the GAO and HUD's own analysis. So what that process did was jurisdictions were required to do what's called an analysis of impediments to fair housing or an AI in their jurisdictions. They were not required to do it on a specific timeline, there was guidance, but no regulations. And there was no requirement or even much guidance on what should be in it right? So when you were required to do to call to say that you had actually done it. Jurisdictions were not required to submit that to HUD, and so HUD did not systematically review, and in fact, the GAO found in its review over a couple 100 of these was that, in the majority of cases, jurisdictions either could not find their AI, the AI was very much outdated or not substantively useful.

Shane Phillips 23:13
And part of that was probably they weren't required to submit it to HUD, right?

Katherine O'Regan 23:17
And you put it on the shelf, it's like, it's like the elevator certificate, when somebody comes asking, you got to be able to find it turns out, yeah, when you don't have to show it to anybody, you might not be able to find it.

Shane Phillips 23:27
And it's not even they submitted to HUD and HUD doesn't review it. It's like they literally don't even give it to them.

Katherine O'Regan 23:34
Some places say they mailed them in, you know, they may have but it wasn't a piece. Like it was... in that AI, you then are supposed to say, "okay, I've identified my impediments", and jurisdictions then state, self-certify, that they are doing something about those impediments but there's no follow-on action.

Shane Phillips 23:52
Right, which I think it just illustrates how much of a priority it was I think.

Katherine O'Regan 23:56
I think it also it's not so clear, having taken, you know, having been tried to like, what's the alternative? Well, you know, I saw a lay of the logic of the rule. But if you see that as the big problem, which is we're telling places to do a bunch of analysis and then giving them no guidance on requirement and what that analysis is; we never look at it and the analysis and follow on steps are not in anything that we can identify. So Mike, you're trained in Planning, and backroom, right, like, that's not a planning process. So we can talk about whether there should be a planning process, but so the rule that was issued in 2015, was meant to address each of these pieces, and it had a particular theory of change in it, right? So there was a lack of clarity, lack of transparency and lack of accountability, right? So the idea was to help with each of these. So the rule requires an analysis with a different acronym, you know, an assessment of Fair Housing. But in doing that assessment, HUD created a standardized assessment tool so a list of specific questions so jurisdictions knew what it meant to assess what their fair housing issues were. In doing that analysis, HUD was on the hook for providing data, and maps to help with, particularly the smaller jurisdictions, lower capacity jurisdictions, in doing this analysis, those data were made publicly available. So as you go through the process of doing your analysis, and engaging with the public, that was also required in this rule, the jurisdiction and the local stakeholders all have access to the maps, the data, etc. And the idea behind this was that that process, that engagement process itself was supposed to be important for a community to both see what it looks like, and identify what it sees as the barriers and the next step, they had to lay out what those steps are going to be. And then metrics, like we're going to be doing this by then. So you lay that all out, this has to be submitted to HUD. And HUD has 60 days to determine whether it's complete, which is not saying it meets your fair housing obligations, but at least say you did what we asked you to do. And then these jurisdictions are all get money from HUD. And that money from HUD comes with some planning requirement. When you get to that planning requirement, you need to link back how you're going to spend HUD's money to what you said your fair housing problems and goals were in this plan. And then the loop continues. It's a learning planning loop, where when you next need to do your assessment of fair housing, you say, this is what we found last time, this is what we said we were going to do, this is what we see on the ground, this is what we're doing now. And you feed that into the next loop of how you tell HUD you're spending the money. So it is very much an iterative loop. And a hard conversation with jurisdictions and stakeholders is," and it's going to take decades", right decades to get here, decades to get out. This is an iterative learning loop but it never stops right? It doesn't just sit on the set by shelf because you need to reply to it when you tell us about how you're spending the money.

Shane Phillips 23:58
Yeah

Katherine O'Regan 24:03
The engagement part and the making the data public was also a critical piece to have this be a local planning process, very much a local planning process, which was also one of the critiques that it wasn't all about hard fixing local problems. It goes both ways.

Michael Lens 27:34
Of course, and I mean, I've never heard that phrase as 'a learning planning loop' and a description of that, I like the kind of potential for that in a way which right, which we're not necessarily in. Can you talk about that last part maybe right? I mean the fact that there is not a specific accountability stream towards changing zoning and land use, changing where affordable or subsidized housing or multifamily housing is cited in a community as a kind of direct response to what HUD sees, and what a jurisdiction diagnoses as their problems, you know, like, how do we how do you think about that?

Katherine O'Regan 28:21
It was definitely one of the big tensions. I mean, there's a reason it took seven years to get the rule out. And there are some inherent tensions in trying to work in this space. And I would call that one 'planning versus enforcement'.

Michael Lens 28:34
Right.

Katherine O'Regan 28:34
There were many people sitting in a room talking about this rule who wanted to prescribe, then what would be strategies that locality should adopt. I think, you know, that that was not the strategy adopted in the rule. And fair housing folks really criticized the rule for leaning in heavy on enabling planning and not being forceful on strategies and not being forceful on enforcement mechanisms.

Shane Phillips 29:05
It actually kind of came out a little more aggressive than the final version, is that correct? Where there were... at least the initial proposal had some kinds of enforcement that were walked back a little bit before it was finalized.

Katherine O'Regan 29:20
So I came in that middle process. So I certainly proceed... I think you're exactly right on the perception. I've now become a little skeptical of public law versus going back to the details myself of having heard this rule described as being very top-down heavy. I think the Fair Housing people who criticize it are looking around asking what rule are they talking about? There is close to no prescription in terms of the specifics, with more of a belief that the public notice of the process and the fact that every local stakeholder and citizen is allowed to write comments. There's a commenting period. It's a lot like the commenting period that government agencies go through. And when they submit their final AFH, they have to talk about those comments and then explain anything they did not address in their rule. So it is not the same as saying you have to do something. But if an issue has been raised, and you're not doing something about it, we want you to justify it. Now. That's not it's against not an enforcement piece. But it is an accountability mechanism that's well known in how we do public rulemaking so...

Michael Lens 30:37
Right!

Katherine O'Regan 30:38
... and I would expect, you know, the theory of this, you would expect learning over time and variation across communities. And something that we talked about it's communities really vary in their appetite for this. And so along that continum of communities, the extent to which you can bring tools that are helpful for planning, and a helpful requirement for places where some actors want to make progress. And they can use this requirement as a need to make progress, versus truly going after something that's well designed for a bunch of lawsuits and regulations for places that are recalcitrant, and never would want to do anything to.

Shane Phillips 31:19
I feel like I should take a step back, just to acknowledge the depth of our acronyms right now. We have the the FHA's, AFFH, AFH. We have the Fair Housing Act, Affirmatively Furthering Fair Housing, Analysis... Assessment of Fair Housing, I can't even get through the whole thing so....

I would say so I have started... I don't say AFH anymore, I say the 2015 rule.

Michael Lens 31:39
Yeah.

Shane Phillips 31:41
When I'm in the room, I just leave out the letters because it's... and this is a podcast, there's no like anything on the screen to help people. So I hope people have...

Yeah, yeah, F's, H's, and A's is challenging.

Michael Lens 32:00
Yeah. Yeah. Just I mean, just to emphasize that it's incredible that even the acronym is kind of hard to say, I guess the letter F is just hard to spit out sometimes. Right, like, Shane, I feel like I've dominated so far. Do you want to make sure we're like, on topic? I probably...

Shane Phillips 32:23
No, no, no I think we're still. You know, I think we've talked a little bit about where it falls short. And if there's anything you want to add feel free but I'm curious, Kathy, if you think there's anywhere where the critics of the 2015 rule, you know, had something valid to say where I think that the main claim was like too much was being asked of them. It seemed to be like... was there an element of truth to that, at least in some cases, maybe?

Katherine O'Regan 32:49
Yeah. So I actually think there is and I, I'll talk about that, and also talk about some things that people disagree on. But I think that the rule got right, but I'm actually going to start with doing too much. I think the burden issue is real, doing too much on burden. And that burden is both for the jurisdictions, and for HUD, it's a very big assessment tool. Philadelphia's assessment came in at over 700 pages. And

Shane Phillips 33:17
That was a question for me learning about this, you know, over the past year or so, just how HUD expected to be able to review.

Katherine O'Regan 33:25
Exactly, exactly. So in that first cycle year, so up until the point when the rule was suspended the number of assessments to stick with a simple word, the number of assessments that came in was 49. My recollection is that our that the cycle, the planning cycle, two years later, would have brought in more than 1000, we struggled with the ones that came in at the end of the Obama administration, which was under 40. So the capacity at HUD is a really big issue. And they read into that, they read into it within the administration for whom this was not a priority.

Shane Phillips 34:05
Right. Right.

Katherine O'Regan 34:06
And I actually think that's what took the rule down. I think that it was not a high enough priority for the administration to go after it. But the Fair Housing staff couldn't do the work of getting those done and, and stopped on a burden basis. And so...

Shane Phillips 34:24
Like, it's it's a totally achievable thing, if you put the resources into it, but the resources weren't there to begin with, and certainly the Trump administration wasn't going to invest them.

Katherine O'Regan 34:34
But.I would say a 780 page analysis is not what is needed to provide some insight into what to prioritize and certainly makes it completely inaccessible for smaller places and for people who, you know, want to be involved. So I think something shorter and something very targeted, I think we can learn from the 49 that were completed, and reviewed and assessed by HUD. I think the fact that HUD gave comments back, something that was built into this, and for anybody who's worked with agencies, not just HUD on these types of things, you know, you apply things and then you get a yes, no, the idea behind this was to have an informal mechanism of which if something was incomplete, and it was just missing, or there was a disconnect, HUD could let places know. And they did that, there were places that submitted, they got an informal No, you need to do X, Y, and Z, and then they resubmitted in a timely fashion and got an approval. And so that type of iterative process was meant to be built into it, and jurisdictions did not believe HUD would do that. But they would tell us how to fix it right?

Shane Phillips 35:42
The initial response seemed pretty promising in that, like, a lot of...

Katherine O'Regan 35:47
It was, granted it was it was under an administration that really wanted this to work. But I think figuring out a sustainable version of this is a problem. In terms of some of the other ways that you know, requiring too much was talked about. One of the criticisms from jurisdictions is that they were required to look beyond housing, to other things. They say we don't control those levers, HUD's response, and I think this was correct is it doesn't matter, those things matter, we should have a picture of it even if you don't believe on your own you can fix it. So I think that should stay. Some thought there was too much required on engagement, because it precedes another engagement process they have but I think engagement is a key part for keeping. And we certainly didn't go too far on prescribing actions.... I'm sorry, I didn't go far enough. But there are some things that I think really are worth highlighting. So one thing so maybe going back to the "too much beyond housing", the rule defined affirmatively furthering, and for the first time, it's not defined in the Fair Housing Act, none of the guidances have ever, and it was very controversial. And it was defined as "taking meaningful actions, overcome patterns of segregation and foster inclusive communities", as you noted Shane, "free from barriers that restrict access to opportunity based on protected characteristics". So it is not just segregation, it is about the impacts of segregation and meaningful inclusiveness. That was controversial. It takes us beyond, it takes us back to the Kernel report, and I'll be clear about this. I think that's a critical piece to keep in and was certainly under debate under the Trump administration. And then I think some of the other criticisms, one of the other criticisms that we can't get around, is the tension between mobility versus reinvestment. And there are those in the Fair Housing field who focus a lot on the mobility arm, mainly because they think it's been under-tended to in housing policy.

Shane Phillips 37:50
Just to clarify, when you talk about that, do you basically mean, do we build housing in places that have a lot of opportunity or do we make it easier for people who live elsewhere via transportation investments and so forth to get to those places? Is that the distinction?

Katherine O'Regan 38:05
No no, the last part is reinvesting in those communities that don't have opportunity. So some have interpreted, so I think that's right, some have interpreted "Affirmatively Furthering" as we need to open up communities. And the housing lever we have to do that is to get affordable housing into high-opportunity neighborhoods. And concern is, is this reverse redlining, and we're no longer putting our housing resources into higher poverty neighborhoods, which may be neighborhoods of color, where housing investments and other investments are needed, and the condition of housing may be a barrier to comprehensive community development. And so this is a fight in the field between community development and fair housing people. I think that many in the philanthropic side, have worked to help bridge that, this is probably about also... it's not just about values and vision, it's really about limited resources. And with such rationed resources, you focus on one side, but the rule definitively said, we need to do both. We need to do both. Meaningful choice means opening up places of opportunity, and turning the places that people currently live into places of opportunity. It's a tall order, but I think we need to keep that, it's 'both and'. I don't know where... if you say neighborhoods matter to the life trajectory of kids, you cannot say we are leaving these neighborhoods behind. It's not an acceptable policy foundation. So that one's got to stick, that one's got to stick.

Michael Lens 39:42
Yeah, I was just gonna make a quip that for some reason the many fights on housing Twitter do not involve this mobility versus reinvestment question that Kathy and I could throw you a couple journals where there's been very extensive fights of people screaming at each other like, "No, you got to get people to take it out", "No, you got to fix the place where they live", "No, you got to do both". "Yeah, okay let's do both", you know,

Katherine O'Regan 40:10
So I want to raise something else on something that is a real flaw in the room that HUD was kind of stuck with, which is, you know, we started out with saying the definition, right? This is about opportunity, where segregation and housing as a critical lever or barrier. It's about opportunity, this shouldn't just be about housing. This should not be only at HUD, and it should certainly not be by the geography of jurisdictions getting formula grants, because that's not a whole housing market. It's not a whole labor market. So pie in the sky, but the right way to structure and think about it, there was a preceding the rule, HUD had a cross-agency, regional grant granting program called Sustainable Communities, and it was between the Department of Transportation, EPA, and HUD to talk about levers of money and things that matter for what the spatial development of areas is like. They did a similar assessment, that's where you would want things. So here's my real pie in the sky, and I didn't really know about this until this week. So in the Clinton administration, President Clinton signed an executive order called the Leadership and Coordination of Fair Housing in Federal Programs that established a Presidential Council on Fair Housing that included all of the cabinet agencies chaired by HUD, making explicit that the Affirmatively Furthering obligations of the Fair Housing Act are an obligation of all federal agencies that do housing and urban development, everybody's in is urban development, everything - USDA does urban development. So my understanding is that executive order has never been taken down, we just don't have that Council. But if you move this up above just HUD, transportation funding....

Michael Lens 42:02
Of course!

Katherine O'Regan 42:03
.... that's real funding. If you think about the things that matter in the room, we're talking about access to jobs, you're talking about education, quality, health and housing, I think the Affirmatively Furthering effort that is going to move the needle, so we don't have this conversation 20 years from now, Mike, is actually up above the HUD level. So I don't know that the Biden administration is going to take that on but it would be the right way to address the spatial inequities that are a driver are so many of these.

Michael Lens 42:30
Yeah, it's hard to see that happening early on in the Biden administration with what's on the plate.

And you got some other crises going on.

Shane Phillips 42:39
I feel like we've been alluding to this and kind of mentioning glancingly but this rule was suspended by the Trump administration. And we want to be very clear about that, it is not the law of the land right now. We're basically back where we were before the 2015 rule with these analyses of impediments, rather than the Assessment of Fair Housing. And I don't think we need to dwell on that, I think the bigger question and you talked about it a little bit like where do we go from here? You know, if we want to improve on this thing, I think you gave some good advice for that. And I also want to note, since we are in Southern California, that California adopted its own AFFH requirements, really, just as I understand it, they were just a copy paste basically, of much of the 2015 rule, including that definition of segregation and fostering inclusive communities. So that's all good. And I think those recommendations were good. I guess I don't have a question related to that. I just I want to put it out there and make it and make it clear to the listeners. My question is what our goal is, like what integration looks like; my notes here, you make a point in your 50-year paper, that when the FHA was passed, the segregation pattern at the time was one of black and poor, being concentrated in central cities, and the white and affluent in the suburbs due to white flight. But that isn't exactly our current context, it's still true to an extent, but many central cities and neighborhoods have really regained popularity and seen an influx of white and relatively affluent residents. And so if our goal was racial and ethnic integration with the housing market, this might be viewed as a positive development, right? But I don't think that's how it's being seen. And I think that's for good reason. It hasn't really improved the outcomes, all these non-housing outcomes for black households, for example. And so how should we think about distinguishing between "good integration" and "bad integration", because having a bunch of white people come into a community of color, that's not by default, a good integration?

Katherine O'Regan 44:55
Yeah. So there were a lot of things in that. I'm gonna... I would just make one reference to where we are. The rule was suspended, and HUD was going through a process of creating a proposed rule. And it actually was following legal process. Prior to the....during the summer last summer, I think to the surprise of the Carson, HUD team, President Trump took on the issue, it was, quoted in a campaign way, actually, in the New York Times, like, you know, didn't think that this rule would be making it into Times Magazine and New York Times. But the Trump White House issued a final rule. So just to be in the nuances of things you all may not care about....

Shane Phillips 45:43
Yeah we care

Michael Lens 45:44
Oh yes!

Katherine O'Regan 45:44
Like, that is not legal. I believe this is not legal right? So the rule, you know, I think very much very painful to the staff at HUD who had been working on a legal process to finalize a new rule, which would then be the rules of land, the administration issued a final rule that does not resemble HUD's rule that went through comment. It actually doesn't mention segregation, there's no spatial analysis, space is not involved. So it would dramatically alter. And there is now a lawsuit against the Administration's rule. And it I think, on valid basis, given it did not follow procedure so the Administrative Procedure Act would have been the basis on which there's a lawsuit, the incoming Administration can choose to not defend that rule if it looks as though it could lose in court. That is a legitimate to me, not a lawyer but that could be a legitimate stance. If it disappears, the last legitimately past rule is the 2015 rule. You still have to go through getting a new tool up, there's other administrative components, but it doesn't put us back at AI, because they would not have taken a valid approach to doing it. So these are the things that helped me at night, when I'm trying to sleep; there's a pathway that's not a full rulemaking. And since it took seven years of an administration that actually wanted to pass a new rule, I think a method that does not require rulemaking before we get something back up and running is a good match, right?

Michael Lens 47:19
Absolutely.

Katherine O'Regan 47:20
Yes. So that's one piece. But as we know, that rule itself is a limited apparatus, we've got societal, larger issues, but you're raising something with the nature of the problem changing, and what does it mean, and thinking about whether we get any benefits from let's call it gentrification, right, that was really changed the patterns. I think there's two pieces of this, and there's no easy solution. And so it's useful to experience people you really like and agree with on the basis of a value, having different policy stances because it can make you pause and realize reasonable people can really disagree. People who want a similar outcome can really disagree. And so with the gentrification, no policy, just thinking about the integration you might get from gentrification. I think the empirical evidence is much more mixed, that it's only transitory that there certainly are places where you see sustained improvements on an integration basis. And then a question can be asked about how much do the pre existing residents gain from that, but it's not as... I think the evidence on the displacement and that it's always temporary on the move to something else isn't quite there. And Ingrid's actually done some nice work showing that, at least in New York City, public housing, and you could imagine other types of affordable housing, play an anchoring role in capturing integration and stopping the full cycle. And so that tells us something about an important policy tool.

Shane Phillips 48:48
I did have... I think it might have been that paper in my head as part of this just, there's, you can have this influx that is, you know, it occurs at some pace and then kind of stabilizes, or it can just be, as you said, a transitory thing where it's just bit by bit the existing community is being pushed out. And it's not integrating, it's just displacing.

Katherine O'Regan 49:12
Yeah. But there's other parts to this; one prong you have is whether or not you know, integration is going to bring benefits and we should presume, and I think it's something really the fields (are) going to have to really be grappling. We're still operating as though getting white people into neighborhoods is like the good thing and it's the thing that's needed and neighborhoods that don't have white people have to be fixed in some way; there's something very offensive about the whole orientation we take on this, and as academics might get away a little bit more with it, but pause for a moment on what that feels like. So we haven't done the soul searching as researchers in the way that we talk about this, an thinkd about this, I think that we need to be doing. But there's another piece and I think that you're going to go on this if we think about what that means more narrowly on Fair Housing tools. If you take the 1968, what were you focused on, you really were focusing on providing some more choice and opportunity and access to more than the limited set of neighborhoods that people of color were kind of allowed to live in and could purchase homes in, etc. And so it was opening up, it was all about opening up those other communities. Now, if you're trying to think about how do we retain diversity in a city, it's about how do you stop some of that displacement from occurring? And the tools that locations think of and have to protect are the mirror image of exclusionary tools of keeping others out. And how do you come to terms, this is like, "Is there a good and a bad way to exclude?"

Michael Lens 50:54
Right

Katherine O'Regan 50:54
A whole bunch of people who really care about communities of color walk away from using anything like an exclusionary tool as a way of accommodating it, because then you've got the discretion of local actors on whether they're going to use it in a good way, in a bad way. And that's where the community preference discussion comes up. And I think there is where you're seeing generations of Fair Housing folks disagree?

Shane Phillips 51:20
Yeah.

Michael Lens 51:20
Right, and in a society that prioritizes colorblindness over, you know, outcomes of equity across race, as you know, I mentioned before, like, how do you take away the exclusion abilities for white community but empower a community of color to retain or increase really, those exclusionary potentials? Because most communities of color over the vast majority of urban history in this country haven't really been empowered to exclude in anything like the ways that wider communities have right.

Katherine O'Regan 51:58
So I think the power... and would like to talk about San Francisco before we end because I think it's one of those..., the nuance of everything being gray and not being clear that an answer is the right answer. But you know, so the power that's left is we don't want any housing built. I'm going to try to stop gentrification. I'm going to try to stop others from coming in on the one tool I have, which is I protest the rezoning, I protest the new development. It doesn't mean it protects people at all right? The pressures are still there but it contributes, I think, to the supply side problem, and it creates just another wrench and people are worried about their own place, it's not their job to fix the system. But I think this system of local control on this, and the way we do it , as you said, like they have no tools, limited tools, this one they can do. And it does not protect, and it does not open up getting more of things that are needed in the community. And it does not address the systemic problem we have, but it does mean that we produce less housing than we need. But can we talk about San Francisco for a second because....

Michael Lens 53:03
Yeah, yes,

Shane Phillips 53:05
Yes, I'll try to summarize it very quickly here. So basically, and it's not just San Francisco that has this...

Katherine O'Regan 53:11
Because New York City's being sued on community assets right now, it's easier for me to talk about San Francisco

Shane Phillips 53:16
And the idea is basically, you know, cities have proposed these programs that give preference in subsidized or, you know, otherwise low income units to current neighborhood residents or city residents. And that's, you know, understandable from the perspective of, if you have a new affordable development, say it has 50 units in it, you might get 1000 applicants or more. And those will be from across the city. And so the odds that people who actually live in the community where that development is taking place, will get to move into those units is quite low, which, you know, just from like a political economy perspective, makes it harder to get people to support these projects. And also I think there's a sense of fairness that where this is occurring, you know the people who live there should be the ones to benefit most from it. And so, you know, we want to say if you live here, you have a better shot, or even to some extent a guarantee. Maybe some spaces in the building are guaranteed for local residents but that's run into issues with the Fair Housing Act. Can you explain why that is?

Katherine O'Regan 54:16
Yeah, so if you think about one of the issues in the Fair Housing Act, right, is that you don't want to undertake policies and practices that perpetuate segregation. Given the level of segregation we have in the country, it's hard to imagine a neighborhood-level community preference that doesn't perpetuate segregation, because it is saying we are reserving units, and usually a sizable 40 to 50% of the units for people who already live in this neighborhood. So in New York City, the lawsuit was filed by an African American woman who did not get access to a neighborhood that was predominantly white. And of course, if you think about this as Westchester, New York, this is exclusionary, right? We're saying we're building this housing with public dollars, and not just our public like dollars, and it's for us, and we're going to keep others out or a substantial barrier to others getting it. And from that perspective, you then almost want to say, "well, does this depend on the community, does it depend on the justification?". San Francisco has a city-wide preference, and then a neighborhood preference on top of it for affordable housing, and came to HUD in 2015, or 16, because it had a HUD-funded project in which it wanted to use its community preferences that it uses for all affordable housing. And it was in a district or neighborhood in San Francisco that had been historically African American, there'd been the city could document, it's a real loss of African American population and pressures, and it was senior housing, and it wanted to have maybe 40% of the units for local residents, and HUD said, "No!". The San Francisco team flew out and met with the HUD people, I think every person who came was a person of color, it was all about maintaining some diversity in the city as displayed and it was very painful among the HUD staff on this, although a lot of disagreements, but the reading of community preferences and such. But in having a policy that might perpetuate segregation, or have discriminatory impacts, disparate impacts, there is a justification called public or business purpose, right? So if there was a legitimate public purpose, and there was not a less discriminatory impact, you can still adopt policies that do disproportionately affect a protected group.

Shane Phillips 56:37
And is that what they tried to pursue?

Katherine O'Regan 56:39
So now, this is totally not what HUD did or any officials, this is my interpretation, okay? Interpretation is it is a legitimate public purpose to want to avoid displacement, our thought was that, kind of different than what you said Shane, if a neighborhood is lucky enough to get affordable housing, and there was some other neighborhoods under displacement pressure, and they get no affordable housing, why should it be the residents only of the neighborhood getting the housing that are protected? And so what if... if displacement is your public purpose, the appropriate solution should provide preferences for residents of neighborhoods under due displacement pressure. Mike, there's no racial code in this. Of course, if you look at the neighborhoods that have displacement pressure, you actually would kind of be protecting on average more people of color. But it's not one group. It's not one neighborhood. And in fact, the disparate impact if you do that analysis is lower. And so what San Francisco put forward was a displacement preference that covered many new residents of many neighborhoods in San Francisco for the subsidized project, and that was approved by HUD. I would call that threading the needle, I don't know how that'll stand up in courts, but it is one that better matches the intervention with the public purpose. It does not meet the political economy need of saying, "oh, get a neighborhood to say yes, about building housing, because we're going to get some", but I actually think that political economy bargaining shows a flaw in our local decision making more than is something we should appease. That's an analyst position. I mean, if I'm in an agency, and you've got to get things built, and this is the way things get done, I appreciate it's expediency. But these are public dollars, and the infrastructure, the housing and everything else that goes with it requires collective decision making across space, and I worry about the holding up that we have to pay off neighborhoods. But I think this is going to be an area, a hotly contested area, but one where we need more innovations, because the nature of what we need to do for creating and sustaining inclusive communities is not the old set of tools.

Michael Lens 59:03
No, absolutely not. And yeah, it's so fascinating how many directions you can go in. And as you said, Kathy, I mean, you can have two particularly like minded people on the housing policy spectrum, come to very different conclusions about how to think about this. And that's what makes it exciting, in some ways on a policy dork level, but obviously it has real world implications for people's lives too obviously.

Shane Phillips 59:31
I did want to know, you were talking about how you're going displacement rather than local residency. And I think the displacement, it solves a different political economy issue, in my opinion, which is people are afraid that new developers will displace them, even if this building they're opposing isn't displacing them. They might be opposing it because they might be next, right? And so to have, you know, a safety net, basically that says if you are displaced or threatened with displacement, there's a place for you to go, and if we're building affordable housing everywhere, you know, it would be nearby too. So I think there's there's a real benefit there, and actually, I think it's a better strategy overall, I think it makes more sense. And, you know, I think here in LA if you do like an Ellis Act eviction, for example, I think you have to give like a year notice in many cases, and so, again, having that safety that there there's, there's really an opportunity to...

Katherine O'Regan 1:00:22
Requires us building more housing so that the safety net isn't fully rationed to like a tiny amount now.

Shane Phillips 1:00:28
Yeah

Michael Lens 1:00:28
yeah, exactly.

Shane Phillips 1:00:30
We've gone quite a while here. And I know we could go quite a bit longer. But I really appreciate both of your time. Kathy, thank you so much for joining us.

Katherine O'Regan 1:00:38
It was really fun to think about this. I appreciate having a conversation.

Shane Phillips 1:00:42
You've made me realize that everything actually is a Fair Housing question.

Katherine O'Regan 1:00:46
I now think it is

Michael Lens 1:00:48
Wow.

Shane Phillips 1:00:49
I think, I mean, most of what we're working on it, that's what it comes to.

If there's a spatial aspect to it, there could be a fair housing component yeah.

Michael Lens 1:00:55
Thank you, Kathy. Always so wonderful to talk to you. And we don't get to see each other. We usually get to see each other in the fall at conferences, and it's impossible to think of my wonderful life here at UCLA having happened without meeting you.

Katherine O'Regan 1:01:12
Oh that's very kind!

Michael Lens 1:01:14
It's pretty special to to get to just chat about these important things with you.

Katherine O'Regan 1:01:19
Great seeing you. Thank you for putting on this series. I need a podcast series to listen to, this is the perfect one.

Shane Phillips 1:01:29
That's it for this episode of the UCLA Housing Voice podcast. Thank you again to NYU's Katherine O'Regan for joining us and helping us understand the FHA's, AFFH, AFH. And yes, that took me way too many takes to get right. We've included Kathy's papers, and the Kerner commission report in the show notes, and we've shared our own highlights and notes from her papers on our website@lewis.ucla.edu You can find the UCLA Lewis center on Facebook and Twitter. And you can follow me on twitter @ShaneDPhillips and Mike Lens @MC_Lens And one last time if you liked the podcast, subscribe, rate review, tell a friend... goodbye

Transcribed by https://otter.ai